Retribution: Death penalty argument redux

Traditionally progressive New England Governor Mitt Romney is pushing to reinstate the death penalty in Massachusetts where it has not been used since 1947. Connecticut recently executed serial killer Michael Ross. The death penalty debate is back.

On one side are those who say that the worst of criminals deserve the worst of punishments; on the other side are those who argue that we are all degraded when the state kills in our name.

If I had to vote on a death penalty law, I would probably vote against it because the problems with its fair enforcement are too great. But much of the deeper philosophical opposition to capital punishment is based on muddled arguments that reflect a misunderstanding of the purpose of criminal justice, a misunderstanding that also gets in the way of effective death penalty alternatives.

Take the notion that capital punishment is wrong because it amounts to "state-sponsored killing" and that, in executing a murderer, the state is doing the same thing of which the murderer is guilty. In fact, any non-anarchist society authorizes the government and its agents to perform certain acts that would be illegal if committed by a private person– specifically, the use of force. Only the most hardcore libertarians would call all taxation "state-sponsored theft" (and very few anti-death penalty liberals would agree). And even the most dedicated civil libertarians don't condemn all arrest and imprisonment as "state-sponsored kidnapping."

Arguably, taking a life is radically different from other forms of force. But confining someone to a 6-by-6 cell for life is a pretty drastic form of coercion. If a private individual did this to an innocent person, we would be horrified, and we would go on to inflict the same fate, lawfully, on that individual.

Another common argument is that the death penalty is bad because it's based on revenge. In an article decrying Romney's death penalty proposal in The Oakland Tribune, Oakland-based pastor and syndicated columnist Byron Williams notes that safeguards against wrongful execution do not address the issue of "state-sponsored retribution."

Yet retribution is also present in other forms of punishment particularly life imprisonment, which clearly does not have rehabilitation as a goal. In part, we imprison criminals to prevent future crimes. But is it the only reason? Former Nazi concentration camp guards and other war criminals leading ordinary lives in our midst arguably pose no threat; yet we still want them brought to justice. Conservative defenders of the death penalty, such as political scholar Walter Berns, have a point when they argue that one goal of punishment is to restore the moral balance violated by the crime.

Jacoby argues that while the death penalty is beneath a civilized society, retribution– the desire to make offenders "pay" for their crimes, to express our moral outrage at their acts– is an important purpose of the justice system. The death penalty is not the only way, and perhaps not even the best way, to achieve this goal.

Jacoby treats revenge and retribution as synonymous, but there is a subtle difference.

Vengeance is primarily concerned with the avenger's grievance. It may target a wrongdoer's loved ones, or a person who has caused an accidental death but is faultless– or, at worst, negligent.

Retribution, on the other hand, addresses moral culpability (one reason the execution of people with diminished mental capacity is generally seen as especially barbaric).

On the other side of the moral ledger, however, is the possibility of executing an innocent person. Given all the mistakes and betrayals of trust that we know about, and the many we don't, empowering the state to end someone's life seems far too drastic. The safeguards proposed by Romney, including a requirement of absolute proof of guilt rather than guilt "beyond a reasonable doubt," could open a new can of worms: If we don't have enough assurance of guilt to execute someone, is life imprisonment really acceptable?

On the other hand, this is one instance in which imperfections cannot be tolerated. The price is too high and the decision too irreversible. Without strong evidence that the death penalty saves innocent lives, one innocent person executed is one too many.

Death penalty opponents have a strong case. But as long as they deny the legitimacy of retribution, their arguments are likely to fall flat.

Cathy Young is a contributing editor at Reason magazine and a columnist at The Boston Globe, where this article originally appeared. She's the author of "Growing Up in Moscow: Memories of a Soviet Girlhood."